Jackson County Department of Human Services v. I.J.R.,, 2023AP1495-6 4/11/24, District IV (one-judge decision; ineligible for publication); case activity
In yet another beefy TPR appeal presenting multiple issues, COA rejects all of I.J.R.’s arguments and affirms.
Right to Appear In-Person at Summary Judgment Hearing
Here, the petitioner moved for partial summary judgment as to grounds. (¶9). I.J.R. was incarcerated and not produced for that hearing. (¶14). Instead, she appeared via video. (Id.). The circuit court denied her request for a continuance and granted the motion. (Id.). On appeal, she therefore argues that both her constitutional right to due process and her statutory right to be present under § 885.60 were violated. (Id.) She also argues that the circuit court failed to make sufficient findings before conducting the hearing with her appearance via video. (Id.).
COA rejects these arguments for several reasons. First, the record is unclear as to why she did not appear in-person. (¶15). Although I.J.R. blames the Department for failing to file a writ, the record also contains conflicting evidence tending to suggest trial counsel was at fault. (Id.). Second, COA finds that all of I.J.R.’s statutory and due process arguments are forfeited, as she did not raise them below and made only a generic argument that she should be permitted to appear because it was an “important decision.” (¶16). Finally, COA concludes that the circuit court did not erroneously exercise its discretion in refusing to grant a continuance under these circumstances as it “articulated a reasonable basis for its decision” and, while not citing § 885.56(1) (the statute governing when a court, in its discretion, shall permit appearance by video) specifically, “addressed factors listed in that statute.” (¶20).
Summary Judgment
Next, I.J.R. argues that the circuit court erroneously granted the Department’s motion for summary judgment. (¶27). However, COA holds that summary judgment with respect to the ground of abandonment was appropriate based on the record developed below. (Id.).
As to a prima facie case, COA finds that the Department’s affidavits and I.J.R.’s concessions demonstrate that there was a sufficient period of time during which the “children were placed outside of I.J.R.’s home by court orders containing the required statutory notices, and I.J.R. failed to visit or communicate with the children.” (¶29). I.J.R. counters, however, by asserting that § 48.415(1)(b) rules out a significant portion of the identified time frame, as she was under a court order suspending her visitation with the children. (¶30). COA holds that this argument is foreclosed by Carla B. v. Timothy N., which held that the statutory limitation at issue “does not apply if the court order ‘prohibits visitation but does not prohibit communication.” (¶31). As this is binding precedent, COA does not address I.J.R.’s argument that the holding of this case is in tension with the plain text of the statute. (¶32). It also declines to consider an argument that I.J.R. would have understood the order as prohibiting, or at least discouraging, communication as the record does not plainly support that argument and, in any case, her subjective interpretation of the court order is irrelevant to COA’s legal analysis. (¶34).
In addition to arguing that the Department failed to mount a prima facie case, I.J.R. also argues she had had an affirmative good cause defense which should have defeated the summary judgment motion. (¶36). COA scrupulously analyzes the evidence and the legal elements, however, and finds that I.J.R. has failed to meet her burden. (¶41).
Ineffective Assistance of Counsel
Finally, I.J.R. argues that her lawyer was ineffective for not supporting the response to the summary judgment motion with an affidavit from I.J.R. (¶44). She proffered such an affidavit during postdisposition proceedings and argues that it would have changed the court’s analysis. (Id.). COA analyzes the affidavit closely and determines that I.J.R. cannot prove prejudice, finding the evidence insufficiently specific, detailed, or connected to the legal elements at issue. (¶48).
